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ELCDismissedNot stated in judgment (ELC suit, Busia)· [2019] KEELC 5063 (KLR)

Karim Ojiambo Abudo v Dorothy Sikada Ogombo Bwire & another (Legal Representatives of Joseph Ogombo Bwire) [2019] KEELC 5063 (KLR)

Environment and Land Court
25 June 2019
AKA. K. KANIARU
1,139 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to make a landowner living near the Uganda border pay upfront security, because he owned traceable property in Kenya.

What this practically means

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Executive summary

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The Defendants, DOROTHY SIKADA OGOMBO BWIRE and ELIZABETH AKUMU WASIKE, brought a Notice of Motion dated 30th July 2018 under Order 26 Rule 1 of the Civil Procedure Rules 2010 seeking an order that the Plaintiff deposit security of Kshs.200,000 for their costs, or in default, an inhibition against the Plaintiff's land parcel BUNYALA/BULEMIA/358. They contended the Plaintiff resides in Uganda, has no fixed abode in Kenya, and would be unable to satisfy a costs order if the suit failed. The Plaintiff opposed, averring he is a Kenyan citizen residing on his Bunyala home since 1998, travels to Uganda only periodically for business, and annexed correspondence and summons from the District Officer, Budalangi, served on him locally between 2007 and 2009. In written submissions the Defendants further argued the suit was statute-barred under the Limitation of Actions Act and that the suit property was a first registration. The court, applying Keary Developments Limited v Tarmac Construction Limited, held that security for costs is discretionary and requires balancing the parties' interests, with the burden on the applicants. The Plaintiff had disclosed a Kenyan address, was represented, and had traceable assets in Kenya - indeed the Defendants' own Certificate of Search proved his ownership of BUNYALA/BULEMIA/358, realizable by execution. The Defendants adduced no rebuttal evidence. The court also held the limitation and first-registration arguments were extraneous to a security-for-costs application and could only be determined at the main hearing on evidence. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Defendants established grounds for security for costs based on the Plaintiff's alleged residence in Uganda

Holding

Application dismissed; the Plaintiff demonstrated residence and assets in Kenya and the Defendants produced no rebuttal evidence

Reasoning

The onus lay on the Defendants as applicants. The Plaintiff disclosed a Kenyan address, was represented by advocates, and produced correspondence and summons from the local administration served on him in Kenya between 2007 and 2009. The Certificate of Search annexed by the Defendants themselves proved he owned LR BUNYALA/BULEMIA/358, traceable assets realizable by execution. No evidence rebutted his assertions.

p. 2
02

Whether limitation and first-registration arguments could be raised in a security-for-costs application

Holding

No; those issues can only be determined at the main hearing on evidence, and the Defendants were urged to move the Court appropriately

Reasoning

The Defendants argued the suit was time-barred under the Limitation of Actions Act and that the property was a first registration. The court held these were extraneous issues unfit for an interlocutory application seeking a different remedy, and that arguing them by submissions was unconscionable; they were attempts to obtain an unmerited inhibition.

p. 2

Legal principles established

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  • Security for costs is a discretionary measure requiring the court to balance the interests of both parties, and the burden of proving the ground for security lies on the applicant
  • Ownership of traceable assets within the jurisdiction is a ground against ordering security for costs

Court orders

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  1. 1.The Notice of Motion Application dated 30th July 2018 is hereby dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 26 Rule 1
  • Limitation of Actions ActNot specified

Cases cited (1)

  • KEARY DEVELOPMENTS LIMITED VS. TARMAC CONSTRUCTION LIMITED & ANOTHER
    [1995] 3 ALL ER 534
Jurisdiction invoked
Order 26 Rule 1 of the Civil Procedure Rules 2010 (security for costs)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Karim Ojiambo Abudo v Dorothy Sikada Ogombo Bwire & another (Legal Representatives of Joseph Ogombo Bwire) [2019] KEELC 5063 (KLR)", Case Analysis (2019). Not stated in judgment (ELC suit, Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5063/eng@2019-06-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.